HomeVeterans Guide to VA Claim FilingVA Award ProcessingStaged Ratings

3.5. Staged Ratings

VA has the authority to grant staged ratings, which are "separate ratings . . . for separate periods of time based on facts found."  Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In cases where staged ratings are appropriate, the Secretary must consider all of "the evidence of record from the time of the veteran's application."  Id. at 127.  Staged ratings apply for both initial ratings and claims for increased disability ratings.  Hart v. Mansfield, 21 Vet. App. 505, 209 (2007).  The Board's determination of the appropriate degree of disability under the rating code is a finding of fact subject to the "clearly erroneous" standard of review.  38 U.S.C. § 7261(a)(4); see Smallwood v. Brown, 10 Vet. App. 93, 97 (1997).

A claim will not become final if VA has failed to act upon the claim, or has failed to notify the claimant of the denial of his claim or of his right to appeal an adverse decision.  Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc).  If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by VA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim.  Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009) (same); Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008) (adopting the framework used by the Court in Ingram); Ingram, 21 Vet. App. at 243.

It is well established that "[a] claim for benefits, whether formal or informal, remains pending until it is finally adjudicated."  Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (citing 38 C.F.R. § 3.160(c)). However, pursuant to the "implicit denial" rule, "in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [] VA did not expressly address that claim in its decision."  Adams, 568 F.3d at 961.  A claim has been implicitly denied when a regional office decision "discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected."  Id. at 963 (quoting Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007)).  Relevant factors in determining whether a claim has been implicitly denied include the timing and relatedness of the implicitly and explicitly denied claims.  Id. at 963-64.  See 38 C.F.R. § 3.156(a) ("New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim."); see also Suaviso v. Nicholson, 19 Vet. App. 532, 533-34 (2006) (whether a claimant has submitted new and material evidence generally is reviewed under the "clearly erroneous" standard of review); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990) ("A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))). 

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